Text-deleting app brings open government to the edge of the transparency abyss

COG2This one should make open government advocates stand up and take notice. Several recent reports, including this one in the St. Louis Post Dispatch, suggest that Missouri’s governor – and his staff – have downloaded the app Confide to their personal cellphones. The app “deletes messages and prevents recipients from saving, forwarding, printing or taking screenshots of messages.”

It brings government transparency – quite literally — to the edge of the electronic abyss.

The problem, of course, is that public officials regularly use their personal cellphones to conduct the public’s business. In Kentucky, the problem is compounded by the fact that in 2015 the attorney general ignored the overwhelming weight of legal authority – not to mention the unambiguous language of the  law — and on his last day in office declared that communications about public business conducted by public officials on their private devices are not subject to the state’s Open Records Act.

You can read more about the attorney general’s decision here and about the Bluegrass Institute Center for Open Government’s recommendations for legislation to address the problem here. No more compelling argument in support of the need for legislative revision to the 40 plus year old Open Records Act —  that was last substantially revised in 1994 — can be made.

To the extent it is possible to do so, the law must keep pace with technology.

In the meantime, Kentucky’s officials should be on notice that similar conduct in this state puts them at risk of prosecution for tampering with a public record.

Bluegrass Beacon: Stay the course despite the scandal

BluegrassBeaconLogoEditor’s note: The Bluegrass Beacon is a weekly syndicated statewide newspaper column posted on the Bluegrass Institute website after being released to and published by newspapers statewide. This column has been updated to reflect new developments since it was originally released to newspapers.

An initial statement by House Majority Leader Jonathan Shell, R-Lancaster, that then-Speaker Jeff Hoover, R-Jamestown, “has the full support” of the Republican caucus following claims of a sexual harassment settlement were as wrong as a preliminary police report that Sen. Rand Paul suffered only “minor injuries” when physically assaulted by a neighbor at his home in a gated community in Bowling Green.

It didn’t take long for the truth about the attack on Paul to come out; he suffered bruised lungs, several broken ribs and other damage – hardly “minor.”

It also didn’t take long for a group of conservative statehouse Republicans to dispute Shell’s claim about where the caucus stood regarding the sexual harassment settlement and ensuing cover-up involving Hoover and other GOP leaders.

“Contrary to what has been reported, the Representatives at issue did not have the ‘full’ support of the entire Republican caucus,” said an extraordinary statement issued by the gang of eight lawmakers the day after Shell’s statement, which no doubt helped seal Hoover’s resignation the following day.

Courier-Journal reporter Tom Loftus in assessing the fallout’s winners and losers rightly concludes that Shell’s statement was “not true, and a big mistake.”

But not everything coming out of Frankfort has been wrong.

On Wednesday, Nov. 1, the same day reports of the sexual harassment settlement broke, the attorney general’s office issued a spot-on decision in response to a Bluegrass Institute Center for Open Government complaint that a closed-door meeting of the House of Representatives on Aug. 29 violated the Open Meetings Act.

Hoover said he held the meeting behind closed doors to allow legislators “a more comfortable setting” in which to discuss a consultant’s controversial recommendations for addressing the commonwealth’s public-pension crisis.

But comfort and convenience cannot be determinants regarding whether laws – including those requiring transparency – are followed.

These laws recognize that citizens have as much right to witness the formation of policies – the discussion and debate that occurs during the legislative process – as knowing how their representatives ultimately voted on bills.

Allowing such private discussions to go unchallenged could encourage-the entire House to close its doors to any meeting involving politically difficult deliberations.

“After all, it’s just a caucus meeting,” political leaders could claim.

The Bluegrass Institute Center for Open Government asked for three reasonable actions by House leaders:

  • Acknowledge the statute was violated.
  • Release any written record or audio or video recording of the closed meeting.
  • Approve a resolution committing to future compliance with the Open Meetings Act.

Rather than do the right thing and acknowledge the statute was violated, the House appears to be doubling down and taking the matter to court.

However, not everything coming from House leadership has been wrong, either.

Several lawmakers have called for continued focus on solving Kentucky’s severe pension crisis.

Rep. Jerry Miller, R-Louisville, chairman of the State Government Committee, is urging members to not allow Hoover’s resignation and fallout to “distract us,” calling pension reform “the most important thing facing Kentucky from a fiscal-economic standpoint.”

Acting Speaker David Osborne, R-Louisville, said in a statement following a (legal) four-hour meeting of the GOP caucus that Republicans consider it “vital” that they both get the investigation of the scandal “right, and that we not lose sight of the policy problems facing our state as we do that.”

Some seem eager to use the scandal-plagued environment to avoid meaningful reform to Kentucky’s retirement systems, especially changes to the current structure of unsustainable benefits.

To say we can avoid a confrontation of our $65 billion pension crisis is not true and would, indeed, be a big mistake for this commonwealth and future generations of Kentuckians who would reap the consequences of such failure.

Jim Waters is president and CEO of the Bluegrass Institute for Public Policy Solutions, Kentucky’s free-market think tank. Read previous columns at www.bipps.org. He can be reached at jwaters@freedomkentucky.com and @bipps on Twitter.

UofL’s sloppy open meetings practices expose it to the risk of successful legal challenge by its former basketball coach (and others)

COG2The Courier Journal reports that Rick Pitino was “very humiliated, very hurt” by his treatment at a June 28 meeting of the University of Louisville Board of Trustees. In particular, he was wounded by comments made by Board Vice Chair John Schnatter who, according to the article, participated by video teleconference in a closed session of the board to discuss litigation and personnel matters.

Pitino should take comfort — admittedly modest in the grand scheme — in knowing that his accusers violated the law when they permitted a board member to participate by video teleconference in the closed session.

The fault lies not with Schnatter but with university attorneys, who should have alerted the board to this impropriety.

In September,  we reported on an illegal meeting involving Board Chairman David Grissom’s private phone calls to “every trustee to get their take on how best to respond to the recruiting scandal” during the course of which he obtained the trustees’ unanimous support for the president’s decision to suspend both Pitino and Tom Jurich. And in October we criticized a poorly reasoned open meetings decision issued by the attorney general resolving that disputed issue in favor of the university.

Our analysis of the erroneous open meetings decision can be found here.

That open meetings decision centered on a statute prohibiting nonpublic serial less than quorum meetings of public agency members. The issue is currently on appeal in the Jefferson Circuit Court where we hope the complainant will receive a favorable ruling that rejects the attorney general’s strained analysis and discourages statutorily prohibited secret serial meetings.

The June 28 violation centers on a separate statute  permitting a public agency to “conduct any meeting, other than a closed session, through video teleconference.” In other words, video teleconferenced open meetings are generally permitted but video teleconferenced close sessions are absolutely not.

Schnatter’s participation in the closed session by video teleconference was expressly prohibited by the Open Meetings Act. The board’s actions therefore violated the law.

Were he so inclined, Pitino might seek additional retribution against the university by pursuing a legal challenge to the Board of Trustees’ open meetings violations in the courts. Although courts lack authority to void actions – including firings — taken in violation of the statute prohibiting video teleconferenced closed sessions, they can void action taken in violation of the statute prohibiting serial less than quorum meetings. Pitino has two credible claims of violations of the Open Meetings Act.

In any case, the University of Louisville’s sloppy open meetings practices expose it to the risk of a successful legal challenge by its former basketball coach and others. This is a wholly unnecessary risk that it can ill afford to take.

Quote of the day

“When children perform near the bottom of the distribution of scores on standardized assessments in the early grades, there is minimal likelihood that they will ever make up enough academic ground to perform at significantly higher levels in later years. Put succinctly, Kentucky students who in early grades perform in the Bottom Third in reading and mathematics are less likely to perform above the Bottom Third in either reading or mathematics in later years.”

Kentucky Center for Education and Workforce Statistics
Exploring the Student Performance Gap

How successful are Kentucky’s high school graduates?

The Kentucky Center for Education and Workforce Statistics (KCEWS) has been assembling an ever-increasing collection of statistics about Kentucky for several years, and some of the most recent information about the success of Kentucky high school graduates in postsecondary education is really interesting.

KCHEWS just issued this graph that shows how high school graduates from 2010 fared in each of the next six years of their lives in the college world.

2010 High School Graduates' Degree Success Rate After 6 Years

(Click here and then select the College Completion button to access)

This graphic shows that even six years after high school graduation, only 20.0 percent of those graduates had been able to earn a Bachelors’ Degree or higher.

Another 5.3 percent had earned an Associates’ Degree and 3.4 percent received some sort of certificate or diploma from a technical training program.

Thus, only 28.7 percent of the high school graduates of 2010 had any sort of success in postsecondary education. That’s somewhat shy of the Kentucky Department of Education’s claim that in the high school class of 2010 a total of 34 percent was “College and Career Ready.” This leaves 71.3 percent of the high school graduates in Kentucky in 2010 who either never tried to enter postsecondary education or were not successful after six years in the postsecondary system.

Back in 2010 Kentucky reported a high school graduation rate of 76.7 percent using the older Averaged Freshman Graduation Rate formula (AFGR) (the current Adjusted Cohort Graduation Rate didn’t come into use until the Class of 2013). The AFGR rate indicates that for every 100 entering ninth grade students in the fall of 2006, only 76.7 graduated four years later in the Spring of 2010.

But, the new KCEWS data indicates that of those 76.7 students who did graduate in 2010, only 28.7 percent, or 22 students out of the original 100 entering ninth graders, were able to succeed in postsecondary education.

That’s pretty low odds, if you ask me.

There is a six-year delay to learn about how our high school graduates really make out in later pursuits. So, it will be some time before we find out how well Kentucky’s High School Graduating Class of 2017 performed after they left school. However, with social promotion clearly a serious problem in Kentucky, I am not ready to accept any claims of victory at this time.

White Minus Black Achievement Gap Hidden While School Council Claims Progress

More evidence that averaging test results can hide serious gap problems

As the Kentucky Board of Education works through trying to revise Kentucky’s public-school assessment and accountability system following the demise of Unbridled Learning, a new example from the Dunn Elementary School in Jefferson County shows that just averaging scores for groups of students can hide serious achievement gap problems.

Until now, the only gap accountability in Kentucky has been for a composite group of all special students averaged together. This composite group, known as the “Gap Group,” included all the racial minorities, learning disabled students, poor students eligible for school lunches and English language learners. That tended to bury problems for racial minorities.

In fact, a school could correctly claim it was making progress for its Gap Group while it continued to post white minus black achievement gap in math of more than 50 percentage points!

That’s just not right.

[Read more…]

How much do Kentucky’s school districts really spend per pupil?

How much does your school district really spend per pupil on education? I wish I could tell you.

Want to know why I am bewildered? Click the “Read more” link.

But, be prepared to be surprised. The sometimes enormous discrepancies between two of the Kentucky Department of Education’s online financial reports are absolutely shocking. Even school board members might be getting fooled. And, in at least one case the discrepancy amounts to a total error on the order of $25 million in spending in just one year for just one school district!

[Read more…]

WaPo: U.S. schoolchildren tumble in international reading exam rankings, worrying educators

There was lots of hand-wringing going on in Washington on Tuesday following the release of new scores from the 2016 administration of the Progress in International Reading Literacy Study (PIRLS).

Some takeaways from the Washington Post’s coverage include:

  • “The United States tumbled in international rankings released Tuesday of reading skills among fourth-graders, raising warning flags about students’ ability to compete with international peers.”
  • “The decline was especially precipitous for the lowest-performing students, a finding that suggests widening disparities in the U.S. education system.”
  • “The country’s ranking fell from fifth in the world in 2011 to 13th, with 12 education systems outscoring the United States by statistically significant margins.”

The Post quotes Peggy G. Carr, acting commissioner for the federal government’s National Center for Education Statistics, as saying:

“We seem to be declining as other education systems record larger gains on the assessment. This is a trend we’ve seen on other international assessments in which the U.S. participates.”

Another educator quoted by the Post is Martin West, an education professor at Harvard University. He said, “the results are disappointing, particularly because they may show that efforts to improve educational outcomes for the most challenged students are not paying off.”

That isn’t a surprise to those who know that research going all the way back to the Lyndon Johnson era shows that Progressive Education fad ideas are least effective with less advantaged students. The adoption of Common Core was accompanied by many schools adopting Progressive Education programs, unfortunately, and PIRLS seems to indicate that Johnson era research on education still rings true today.

By the way, one country that moved ahead of the United States was Latvia, which the Post says is “one of the poorest countries in the European Union.”

There are always concerns with international testing that other countries don’t test all their students, and so forth. Still, it doesn’t seem very likely that other countries would change their policies a lot from administration to administration of PIRLS, so the United States’ decline does provide cause to worry.

Thus, while we are still waiting for the release of the 2017 National Assessment of Educational Progress results for the nation and the states to give us more insight, the new 2016 PIRLS data already provides more indications that Common Core might not be getting the job done for our kids.

You pay when the government fights to keep its secrets

COG2In 2016 the Kentucky Court of Appeals affirmed the award of statutory penalties, attorneys’ fees and costs against the Cabinet for Health and Family Services in an amount that exceeded $1 million dollars. The Cabinet had, over a five year period, exhausted every legal avenue in an attempt to shield from public inspection records relating to fatalities or near fatalities in cases involving children under its supervision who were neglected and/or abused in horrific circumstances that might have been prevented if the Cabinet had intervened.

It remains the highest penalty ever awarded in an open records dispute in Kentucky. In affirming the award the court acknowledged, “The penalty we affirm is a substantial one.  Substantial, too, is the legal obligation the Cabinet owed the public and the effort it expended in attempting to escape it. While it will ultimately be the public that bears the expense of this penalty, we maintain that the nominal punishment of an egregious harm to the public’s right to know would come at an even greater price.”

Herein lies the problem.

Public agencies have substantial monetary resources from which to draw in prosecuting or defending open records and open meetings litigation. And they are not reluctant to expend these resources to obstruct access as demonstrated in the protracted legal battle waged by the Cabinet for Health and Family Services. After all, the resources they expend on litigation are not really theirs. It is “the public that bears the expense”  of the litigation and any resulting penalties, fees and costs imposed by the courts.

The message the Cabinet sent to the public – at public expense — in resisting disclosure of records which exposed systemic problems within the agency was troubling. That message? It was more important to the Cabinet to insulate itself from criticism than to save children’s lives.

And don’t let anyone tell you that the Cabinet was chastened by these penalties or that things are demonstrably better there nearly two years later. No less than ten open records appeals have been filed against the Cabinet in 2017, one of the most recent involving — you guessed it — an unsuccessful attempt to avoid disclosure of child fatality records.

The Cabinet’s attempts to censor a requester’s use of public records disclosed to her in an open records request,  and its insulting and dismissive attitude toward that requester when she successfully challenged the Cabinet in the courts – at her own expense – have been documented in past blogs.

And, coincidently, the Cabinet recently settled a whistleblower lawsuit filed by an employee who was ordered to falsify records to cover up the Cabinet’s mistakes in a child abuse case. The Cabinet’s reasoning, one assumes, is that if records must be disclosed it is better to sanitize the records before they are released.

Even more troubling is the swelling tide of often harassing litigation filed by public agencies as an apparent means of silencing those who dare to question their practices. These cases, in part if not in whole, are motivated by a desire on the part of public agencies to leverage their superior resources against members of the public – and even the media – whose pockets are not nearly as deep.

“Governments turn tables by suing public records requesters.” The title of this September 2017 Associated Press article describing this emerging practice says it all.

While the public agency prosecutes the action in the court, the citizen or media representative is compelled to absorb the cost of defending the action. Recent examples include the University of Kentucky challenge to its own student newspaper’s attempt to obtain records relating to allegations of sexual harassment against a professor — using the open records law — in which the university named the student editor of the paper.

An even more recent example involves the Finance and Administration Cabinet’s challenge to a Frankfort reporter’s efforts to enforce his statutory right to attend meetings of a statutorily created selection committee that is statutorily required to conduct some business in open session and some business in closed session. Assuming that the Finance Cabinet can read the statutes, this litigation appears at best frivolous and at worst vexatious.

Nevertheless, both reporters, and the newspapers that employ them, were required to “lawyer up,” while the public agencies that sued them relied on public resources. Only time will tell if the public will pay penalties and costs imposed on the agencies by the courts if the courts find that the agencies willfully violated the laws.

But the prize goes to the City of Taylorsville.  I very recently learned about its request that the circuit court impose punitive and compensatory damages on an open records requester who received a favorable ruling from the Kentucky Attorney General in an open records dispute involving access to responses filed by city commissioners to ethics complaints against them.

The basis for the city’s claim in its circuit court appeal of the attorney general’s decision? The requester did not obtain the original complaints from the city through an open records request — but by other means — and the city was therefore deprived of its opportunity to withhold the complaints in an open records denial.

This tactic finds no support in the law. Knowing the requester as I do, I suspect it is more likely to embolden than intimidate him. But most open government advocates are less inclined to engage in fruitless, and wholly unjustified, legal sparring at their own expense.

In all of these cases the message public agencies send to open government advocates is clear: file a records request or meetings complaint “at your peril.” That message is “noxious to open government.”

Under Kentucky’s open records and meetings laws courts are permitted to award penalties, attorney’s fees and costs against agencies if they find a willful violation.  To paraphrase the Court of Appeals, the Open Records and Open Meetings Acts are “neither an ideal nor a suggestion. [They are] the law.”  Public agencies must strictly comply with them “or risk meaningful punishment for noncompliance.  Rigid adherence to this stark principle is the lifeblood of a law which rightly favors disclosure, fosters transparency, and secures the public trust.”

Perhaps, in the final analysis, it is only the threat of meaningful punishment against public agency officials  — at the official’s and not the public’s expense — that will ensure compliance and prevent agencies from spending your money to keep their secrets.

Bluegrass Beacon – Drug pricing: Bustling marketplace or stifling monopoly?

BluegrassBeaconLogoYou probably sense that few drug makers can compete in arenas with the likes of a mega-pharmaceutical giant like AbbVie, which employs 30,000, raked in $26 billion last year alone and deserves blame for some of those irksome TV prescription-drug commercials.

You’ll also likely detect that prescription prices may be out of reach and a matter of life and death for some.

But if you’re a common-sense conservative, you’re wary about digging in too hard on solutions regarding this dilemma out of concern that (a) you’ve been misled about prices by those with big-government solutions in search of problems, and (b) even if the situation demands attention, whatever response the U.S. Food and Drug Administration or some other fervid bureaucracy concocts will exacerbate rather than ease or eliminate it.

The whole Affordable Care Act (ACA) is reason enough to let skepticism serve as your default position when hearing about bureaucrats or politicians offering solutions to health-care issues like drug prices that sadly may remain out of reach for the sickest among us.

Pressing problems regarding our nation’s health-care policy demanded attention before the federal reform was signed into law by President Obama, like the need to create paths to coverage for individuals with preexisting conditions, reduce overcrowded emergency rooms and ensure an effective safety net was in place for the indigent and disabled.

Instead, we got a wealth-redistribution program that mandates, subsidizes, taxes and punishes – everything but protecting patients and making care more affordable for most who are forced to participate.

Health-care economist Robert Book reported in Forbes that insurance premiums “across the board, for all ages and family sizes, for HMO, PPO and POS plans” rose by 60 percent between 2013 – the year before Obama’s reforms took effect – and 2017, compared with premium increases of less than 10 percent in the same length of time before ACA’s implementation.

It’s a classic example of government recognizing a problem and then doing all in its power to make things worse.

Similarly, attempts at dealing with rising prescription-drug prices with more heavy-handed cures like price controls – which some states favor and others, including the federal government, are, have or will be tempted to enact – discourage investment in the research and development leading to miracle creations like AbbVie’s Humira, which treats the debilitating disease of rheumatoid arthritis.

In fact, the Food and Drug Administration’s antiquated regulatory process is a contributing factor to rising brand-name drug prices, up 208 percent since 2008.

However, the fact that prices for these drugs’ generic equivalents dropped nearly 74 percent during the same period indicates there’s more to those higher brand-name prices than solely the cost of navigating FDA rules.

The truth is, some brand-name pharmaceuticals are practicing the worst form of crony capitalism by misusing safety regulations and protocols to lock generic drug makers out of the arena, keeping their lower-cost-but-just-as-effective products off the pharmacy shelves far past the patent period.

Patent laws rightly protect drug creators from generic competition for 14 years, allowing them to recover their often-huge investments in creating these wonders of modern medicine and turn a healthy profit.

But generics must not be shut out forever, especially with rising health-care costs and lives at stake.

QuintileIMS reports the use of generics saved Kentuckians $5.3 billion just in 2015.

Those savings could increase dramatically if, as the U.S. Senate is considering in the CREATES Act, loopholes used by brand-name drug makers to limit accessibility to their generic competitors long beyond patent periods are closed and reforms are injected into the process so that the prescription drug-making landscape a bustling marketplace with lots of competitors instead of a stifling monopoly controlled by crony capitalists.

Jim Waters is president and CEO of the Bluegrass Institute for Public Policy Solutions, Kentucky’s free-market think tank. He can be reached at jwaters@freedomkentucky.com and @bipps on Twitter.